Hiring migrant workers illegally is still a significant issue in Australia.
The Department of Home Affairs (DHA) estimates more than 100,000 illegal workers are still being employed by Australian organisations, with 75,000 working in the agricultural industry, according to ABC.
It follows an Australian Border Force (ABF) investigation that saw a Melbourne company operating farms, convicted and fined for hiring and using illegal workers.
Organisations or individuals found to be employing workers whose visas do not allow them to lawfully work in Australia may be committing a criminal offence and are subject to hefty fines and even jail.
In this blog, immigration law specialist and The Migration Agency’s Managing Director, Sarah Thapa, explains how Australian organisations, especially those facing skills and talent shortages, can hire migrant workers legally.
Melbourne company convicted and fined for using illegal workers
A Melbourne company was convicted on June 10, 2022 in the County Court of Victoria of two offences under the Migration Act – “allowing an unlawful non-citizen to work and allowing a lawful non-citizen to work in breach of a work-related condition”.
ABF stated that the allegations occurred during peak harvest seasons over a number of years, when the company had several illegal workers on the premises, who had been engaged through a labour-hire company.
“Hiring illegal workers has serious consequences for the organisation, individuals and migrant workers, even if the employer didn’t know the workers were unlawful or in breach of their visa conditions,” Sarah says. “It is up to the employer to know the status of the individual visa holders and responsibility lies with them.
“Not only that, it’s unethical and exploits vulnerable migrants, many of whom feel they have no rights and are too afraid to come forward.”
The latest case follows an extensive ABF investigation where two individuals were convicted, $4.2 million in assets were forfeited, and more than $100,000 in fines were handed down.
What is an unlawful worker?
An unlawful or illegal worker is an individual who doesn’t hold an appropriate visa that allows them to work while in Australia. For example, visas under the Tourist Stream do not allow visa holders to work during their time in Australia.
The Australian Bureau of Statistics (ABS) estimates as many as 62,100 visa overstayers in Australia, with many of these individuals potentially working unlawfully.
In the case of the Melbourne company above, there were two types of “illegal workers”: Unlawful non-citizen and lawful non-citizen.
“An unlawful non-citizen is an individual whose visa has expired but they have not yet left the country. Or they came to Australia on a visa that doesn’t permit them to work while they are here. It is illegal for organisations to employ an unlawful non-citizen,” Sarah said.
“A lawful non-citizen may have a current visa without work rights, for example, a Tourist visa, or they may hold a visa with work rights but have breached the conditions of their visa. For example, a Student visa allows students to work 20 hours a week while school’s in and 40 hours a week when school’s out. Working more hours than what is stipulated in the visa is a breach on the conditions.
“If you are an individual and caught working illegally in Australia, you may have your visa cancelled and be deported. You may also be fined and barred from entering Australia again in the future. You may even be placed in an immigration detention centre until the necessary arrangements have been made.”
What are the penalties for employers who hire unlawful workers?
Under Australian law, exploitation of migrants and hiring illegal workers has serious penalties, including hefty fines and imprisonment.
- Warning: In most cases, an Illegal Worker Warning Notice (IWWN) will be issued on the first offence.
- Infringement Notice: After this, the government can issue an infringement notice and a fine, unless evidence is provided. This does not require court proceedings.
- Proceedings for Civil Penalty Order: The government can also undertake civil proceedings, which can result in a higher fine for the business and additional court costs.
- Criminal Proceedings: For serious or repeated offences, criminal proceedings can be undertaken, resulting in higher fines and possible imprisonment of up to two years for each offence.
- Aggravated Offence: This is related to the exploitation of workers (for example, forced labour, sexual servitude or slavery) and carries jail sentences of up to five years.
The penalties and process for each level of offence include:
Partner with a reputable immigration law specialist
“Employers must have zero tolerance on migrant exploitation and hiring illegal workers. Partnering with a reputable immigration law company, such as The Migration Agency, will help organisations stay abreast of the law and the status of their visa holders so they stay compliant,” Sarah said.
To partner with The Migration Agency for all your global talent and immigration needs, please contact us today.